The Short, Happy Life of Ad Hoc Reasoning

This morning I was surprised to find Tim Kowal — one of my few followers on Twitterdefending the constitutionality of laws that discriminate against Boy Scouts, organ donors, Israeli-Americans, and anyone who has ever worn polyester.

These groups, after all, could not possibly have been on anyone’s mind in 1868, when the Fourteenth Amendment was adopted. None of them even existed yet. Original intent, Kowal explains, must guide our interpretation in all cases. Did the framers of the Fourteenth Amendment intend to protect the specific group in question? If not, states can discriminate at will.

We are constitutionally defenseless, then, against laws decreeing that computer engineers must register with the government, that Slovakians may not marry people from Zimbabwe, and that anyone who has traveled to outer space must wear a scarlet A (for astronaut!) to warn others away. None of these were on the minds of anyone in 1868, because none of them existed yet. They get no protections.

And, even while they existed in 1868, I doubt very much that anyone gave a thought to left-handers at the deliberations on the Fourteenth Amendment. They’re probably safe to discriminate against as well. Let’s add to that list redheads, diabetics, and even baseball players.

It appears the only proper remedy for this dire situation is to re-enact the Fourteenth Amendment today, using the exact same language as in 1868. Today, all of these groups certainly are on our minds, and we can therefore extend equal protection of the laws to them.

Whenever new groups come along, we’ll re-enact the Fourteenth Amendment once again, just to make sure that they’re protected, too. We could even make it an annual thing — every Fourth of July, we get a new Fourteenth Amendment, covering iPod owners, people on Twitter, even cyborgs and clones.

Or wait — maybe we could make the Fourteenth Amendment apply to all people. Just one of those crazy ideas, you know, that I got from the text of the amendment itself.

The problem here is that our constitution must absolutely be a set of general principles pointing at liberty, combined with a set of specific operating procedures for government. It needs to be a general grant of liberty, and a limited grant of power, because a limited grant of liberty very quickly begins to eat itself. General grants of liberty, however, must be expressed in general terms, and this necessarily leaves the working out of particulars to each subsequent generation.

If you think that the consequences of including gays and lesbians under the Fourteenth Amendment are bad, you should also consider the consequences of inhabiting forever the mental universe of 1868. I picked some frivolous examples above, but here are a couple of deadly serious ones.

First, women. Tim Kowal is apparently very happy to defend the constitutionality of laws that discriminate against women (short of their voting rights, of course), because women were certainly not the people the framers of the Fourteenth Amendment had in mind. This is a surprising and troubling revelation to me, but one I will certainly remember.

Second, Asian-Americans were probably not on the agenda when the Fourteenth Amendment was passed. Kowal perhaps believes, then, that Yick Wo v. Hopkins was wrongly decided, because the intent of the Fourteenth Amendment was to protect African-Americans alone.

At least that’s what I infer from the sweeping tone of Kowal’s post:

[T]hose who would seek to keep the vital balance between the majoritarian and counter-majoritarian functions of our political system are those concerned with the training and fostering of principled lawyers committed to the sober interpretation of the law to mean what it was intended to mean, not what historians or sociologists or psychologists would argue it has come to mean.

He’s vital, he’s balanced, and he has a fine command of glowing language — he’s even sober! — but unfortunately, he’s also dead wrong.

On many different subjects, our constitution articulates general rules of fair play without filling in the details. This approach is both wise and necessary. It is mere hubris to imagine that we can articulate perfectly and in every detail all aspects of justice, for all times and places, given the knowledge and the prejudices of the present. We can, however, see the general principles of such a justice.

Aiming at this general idea of justice was the original intent of the framers. If they had intended to protect only African-Americans, it was easily in their power to say so. Instead, they gave us a text that expresses a broad principle applicable to all people.

It falls to us, and not to the dead hand of 1868, to work out the details. In this we are not changing the meanings of the words. On the contrary, we are being true to them. We are uncovering the full implications of justice, which were not known perfectly by 1868 any more than they are known perfectly to us. The principles are eternal, and they are there on the page. But the work of realizing them lasts an eternity.

Update: Kowal replies in the comments, retracting some parts of his post.

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22 thoughts on “The Short, Happy Life of Ad Hoc Reasoning

  1. “It falls to us, and not to the dead hand of 1868, to work out the details. In this we are not changing the meanings of the words. On the contrary, we are being true to them. We are uncovering the full implications of justice, which were not known perfectly by 1868 any more than they are known perfectly to us. The principles are eternal, and they are there on the page. But the work of realizing them lasts an eternity.”

    This is a magnificent paragraph.

    The last thing we should ever do is think that the framers of the Constitution, the Bill of Rights, and the various amendments (esp. the 13th and 14th) were perfect or omniscient or cognizant of the full implications of the ethical principals embodied therein or – more importantly – that they would have considered themselves a such.

    They discovered ethical principals which they determined it was immoral for government to violate. Broadly speaking, we continue to believe those ethical principals are correct. But we should not think for one second that those who codified those ethical principals were incapable of violating them, nor that we (or a majority of Americans on any given issue) are incapable of violating them.

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    • @Mark Thompson, Amen. But clearly it would take a heroic effort of denial indeed not to see that they violated these principles grossly in either application or conception, depending on whether we see the failure to apply the principles universally as intrinsic to the way the principles were conceived, or as a product of how they saw their applicability. And it behooves us either way to consider what role these facts about either the ideals’ fundamental conception or their applicability as conceived (talking here primarily about the Constitution and Bill of Rights) allowed their conceivers to put them in place believing they could and would be for the most part upheld and sustained.

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  2. First, I must correct myself. I negligently aligned myself with the brand of originalism that is taken up with intent rather than meaning. Please accept that I in fact subscribe to the position that the words should take their objective meaning they were reasonably understood to have at the time, rather than whatever subjective meaning their individual ratifiers may have happened to understand. If the ratifiers of amendments used their words negligently (as I did in my post), it is of no consequence to the legal effect of the resulting, duly-enacted amendment.
    With that said, many of the problems Kuznicki identifies are still there: our Constitution might have to be, alas, amended again at some point in the future. A difficult prospect, but by no means impossible. Some hardship may be wrought on some folks. But I submit that refashioning our judiciary into a second-string legislature as we have in the past century has wrought much more hardship in other ways by stripping our right of self-governance.
    Kuznicki also assumes that none of the positive social changes that have occurred in our country would have been possible without the legislative-judiciary we have commissioned. I disagree. Just because context changes and new machinations exist in our world that did not exist in the years our Constitution and amendments were ratified, this does not mean the words have no application. “Commerce” affects future widgets as well as past and present widgets—no matter that they did not exist at the time the word “commerce” was ratified.
    One would be hard pressed to defend the position that included in one’s “liberties” as the word is used in the Fourteenth Amendment is the right of same-sex couples to force, by judicial fiat, the people of a state to change the deliberately chosen parameters of the social institution of marriage. Some folks’ definition of “liberty” may have changed since 1868, but we owe fealty to the meaning of the word as it was enacted, not as we would like it to be.

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    • @Tim Kowal,

      The social institution of marriage is an amalgam of private and public elements. The question here is not about the whole amalgam. It’s only about the government part, and the ways in which governments may treat groups of people alike or differently.

      Properly speaking this matter is indeed a liberty interest. It’s one part of what are known as civil liberties, the particular liberties we enjoy in our capacity as citizens or people under the jurisdiction of a government. Without a government we could still have private marriage; the Catholic Church and others would certainly still perform them. But we would not have civil marriage, which is a bundle of rights and responsibilities coming from the state and federal governments.

      There are right and wrong ways to grant such conditional rights and responsibilities, and that’s just where I am saying that we today know better. You are of course free to disagree.

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      • @Jason Kuznicki,

        Yes, I am sure we will continue to disagree. But my original question, still unanswered, is this: If there is indeed no shortage of meanings of “liberty,” “equality,” “commerce,” “general welfare,” etc. from which a judge may draw, how can the people ever prevent a willful judge from imposing raw policy preferences?

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        • @Tim Kowal,

          What makes a policy preference “raw”? Could I not have said that I found Judge Walker willful, and his preferences “raw,” if he had ruled the other way? It’s not like holding an election depoliticizes our justice system, is it?

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    • @Tim Kowal,

      What could “equal protection of the law” mean if a class of citizens could be denied through force of law access to an institution whose access is a fundamental right? Whether the people passing the 14th amendment would have thought so or not, that is the objective meaning of “equal protection of the law”

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      • @James Vonder Haar,

        The clause cannot possibly mean quite what you suggest. Unless, of course, you mean that I should be compensated the overages in all the unequal taxes I have paid. The very nature of law is to treat certain actions—which actions are carried out by persons—differently, i.e., unequally. Thus, I suppose one might say that to subscribe to a strictly literal view of the Equal Protection clause would ultimately be to subscribe to anarchy.

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      • @James Vonder Haar,

        You make an excellent point. I’d like to expand on it a bit.

        Suppose I found an ancient text that defined what “an even number” is. It says that an even number is any number that, on division by two, yields a whole number.

        By way of example, it says that 17 is an even number.

        Why is it that I must reject the correct definition of an even number — a definition given right there in the text — in favor of a mistaken application thereof?

        The question is largely congruent to the one at hand. How we answer says much about our faith in the capacity of law to embody general principles, principles that we can’t always personally work out.

        This is to my mind also the very definition of objective law — its truth exists outside my mind, or yours, and we need to discover it together. Positivist law takes the opposite view, and claims that someone, somewhere had the real truth, perfectly and forevermore, and that whatever they say must go, even if we personally find it to be nonsensical in its particular applications.

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        • @Jason Kuznicki,

          Actually Jason, its the other way around. Legal positivism says that there is no necessary connection between law and morality. Something is the law in virtue of being a formalised social rule. It is the anti positivists who say that something has to be moral in order to be law etc etc. To whit if the proper method of evaluating the constitution (as in deciding what con-law actually requires, legally speaking) yields morally obnoxious conclusions, then we can genuinely speak about a conflict between a judge’s legal duties and his moral duties. He may (morally speaking) have to go outside the law in order to establish a new precedent. We should not be afraid of admitting that either. (The obligations of a judge when faced with unjust laws is more complicated than I mentioned, and it may very well be the case that judges ought to rein their moral judgement in within the bounds allowed by the law) Or the law may have to be changed by the legislature. I dont know why legal positivism seems to be everyone’s bogeyman, but John Austin, utilitarian and god father of legal positivism would not have thought that someone somewher had the real truth.

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          • @Murali,

            I can’t say that I necessarily agree that legal positivism holds that there is no connection between law and morality. To the extent that it finds a morality in law at all (which I admit is not always the case), positivism holds that following the will of the lawgiver is that morality. But this makes law purely subjectivist in nature.

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            • @Jason Kuznicki,

              Given that I took a philosophy of law class where we covered Austin, Hart, Dworkin and Fuller (with the former two as the positivists and the latter two as the detractors), it seems that I should at least be qualified to speak on what legal positivists have to say (while I can honestly say that I have no clear idea on what legal naturalists/realists like blackstone were getting at which is not to say that I don’t understand Dworkin and Fuller. The latter cannot be the best that natural lawyers have to offer can it?)

              What I learned in class was that legal positivism is simply the separation thesis (weak separation): that there is no necessary connection between law and morality.

              See below link
              http://plato.stanford.edu/entries/lawphil-nature/

              We may just have a terminological dispute here, but the view you attribute to positivists may be more accurately ascribed to Dworkin, who is certainly no positivist.

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            • @Murali,

              Legal positivism is the belief that laws are created by human beings rather than being discovered. Where a legal naturalist would say that we identify law, a legal positivist would say that we create it.

              It’s true that there is no necessary connection between law and morality. But it’s also (I think) implicit that we have the power to know what the lawgiver intended, and that his intent was meant as binding. A theory of law-as-discovery would say that particular intents are less binding and must give way when more important intents conflict with these. I’m mostly drawing on Hayek in this, but also to some degree on Henry Sumner Maine.

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  3. Oh goody, a post on the Fourteenth. I think article five of the constitution supersedes the fourteenth. An amendment can’t be ratified without three fourths of the states assenting and no state shall be deprived of representation.

    One of the broad theories of justice set out by the framers was that the states would provide a check on the federal gov. The Fourteenth, in conjunction with White v. Texas, wipes this concept off the books.

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    • @Cascadian,

      > An amendment can’t be ratified without three
      > fourths of the states assenting and no state
      > shall be deprived of representation.

      As of 2003, all 37 states (that were part of the union at the time the 13-15 Amendments were proposed) had ratified the Amendments, either correcting procedural issues that you may be referring to, or overturning their original rejections.

      So, uh, point moot?

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      • @Pat Cahalan,

        Yes, but the amendments were at one time illegally considered ratified. The government made the former Confederate states pass the amendments in order to be readmitted, even though the government never accepted that the states had legally left the Union in the first place. Non-states had no rights to vote on the Constitution, but real states surely could not be legally compelled to vote “yes” on any Amendments. The first volly of a lot of Republican legal sophistry.

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  4. It’s an interesting comparison-and-contrast to see people (not necessarily Kowal) try simultaneously to argue that:

    1. The Equal Protection Clause, which is utterly unambiguous, must — as an axiom! — be read exclusively in the most constricting original-meaning-originalist context possible, but …

    2. The Citizenship Clause’s “subject to the jurisdiction thereof” verbiage, which is vague gobbledygook today but had an exactingly clear original meaning, can be invoked in a myopic, whatever-works-now manner never remotely contemplated by the authors or ratifiers of the Amendment.

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